Sexual Rights in America: The Ninth Amendment and the Pursuit of Happiness

236 Pages·2003·1.34 MB·English

by  Paul R. Abramson

SEXUAL RIGHTS IN AMERICA

PAUL R. ABRAMSON
STEVEN D. PINKERTON
MARK HUPPIN
SEXUAL RIGHTS
IN AMERICA
The Ninth Amendment
and the Pursuit of Happiness
a

New York University Press • New York and London
NEW YORK UNIVERSITY PRESS
New York and London
© 2003 by Paul R. Abramson, Steven D. Pinkerton, and Mark Huppin

All rights reserved

Library of Congress Cataloging-in-Publication Data

Abramson, Paul R.

Sexual rights in America : the Ninth Amendment and the pursuit of happiness / Paul R.

Abramson, Steven D. Pinkerton, and Mark Huppin.

p. cm.

Includes bibliographical references.

ISBN 0-8147-0692-4 (cloth : alk. paper)

1. Sex and law—United States. 2. United States. Constitution. 9th Amendment. I.

Pinkerton, Steven D. II. Huppin, Mark. III. Title.

KF9325.A93 2003

342.73'085—dc21 2003000531

New York University Press books are printed on acid-free paper,
and their binding materials are chosen for strength and durability.
Manufactured in the United States of America
10 9 8 7 6 5 4 3 2 1
Contents
1 Sex and the Constitution 1

2 History and Interpretation of the Ninth Amendment 22

3 The Poverty of Privacy 45

4 A Solid Foundation for Sexual Rights 66

5 What Can We Learn from Dial-a-Porn? 91

6 Does Prostitution Deserve Constitutional Protection? 111

7 Child Pornography: Black, White, and Gray 138

8 The Past and Future of the Ninth Amendment 165

Notes 187

References 213

Index 221

About the Authors 227

v

To my daughters,Annaka and Sienna,hoping their
choices provoke strength and stamina
—Paul R.Abramson,Ph.D.
To my mentors, Paul Abramson, David Holtgrave, and
Rocky Koga, without whose guidance, sage advice, and
infinite generosity, I might have—to paraphrase the
immortal Frank Zappa—wound up working in a gas
station —Steven D. Pinkerton, Ph.D.
To Adam, who had his first girlfriend while this book
was in its latter stages; to Helen, who lets me give her
advice about boys which she may not need; and to
Anna, Danny, Eliot, Naomi, Sam, Juliana, and Jacob,
for what lies ahead of you
—Mark Huppin, J.D.

1
Sex and the Constitution
THE FREEDOMS OF SPEECH AND PRESS are trumpeted through-
out the land. These rights are fundamental, we are told, because they
form the foundations of democracy. They are so important, in fact, that
they are guaranteed by the First Amendment to the United States Con-
stitution.
But what about other forms of expression, such as sexual intimacy?
Are Americans free to express themselves sexually? Specifically, are
sexual rights protected by the Constitution?
If sexual freedoms do exist in the Constitution, they certainly are
not explicit. Perhaps this was intentional—as though sex didn’t belong
in such rarefied company as the freedoms of speech and the press, or
protection against self-incrimination.
Yet, without sex, the human race cannot endure. The survival of the
United States, in particular, depends upon sex. Thus, in the grand
scheme of things, sex matters––certainly as much as speech and press.
Moreover, ours is a nation conceived upon the “self-evident” truth that
all men (and women) have a fundamental right to the pursuit of happi-
ness. The pursuit of sexual fulfillment, we will argue, is integral to the
overall happiness and well-being of the American populace.
But if sex is so important, why can’t we locate it in the Constitution?
The problem, we believe, is not that sex is absent from the Constitution,
but rather that it is hidden away, subsumed by the most misunderstood
of the ten amendments that make up the Bill of Rights––namely, the
Ninth Amendment.
The purpose of this book is to establish a vital and functional con-
stitutional foundation for sexual rights in America, based on the Ninth
Amendment. This historically neglected amendment states that “The
1